I in fact missed the Alston lawsuit, as well. This is not the Jeffery Kessler lawsuit, but the court is deciding whether to roll all these things into one. Blood in the water, man.

The Alston and Gregory-McGhee suits are alleging that the NCAA is bad because it's capping scholarships below the full cost of attendance while Kessler wants to blow the whole thing up, so there is a case the cases will remain separate.

One thing that we'll know for sure in the near future: whether or not the NCAA has lawyer-cloning capabilities. Change is coming.

When it comes, certain people are going to become smarter overnight. One of the most common rhetorical gambits deployed in the service of the status quo is The Avalanche Of Supposedly Unanswerable Questions that will suffocate college sports once Pandora's Box is opened. They are hilarious when they come from a newspaper columnist, since the answers to most of them are "duh":

To understand just how erroneous and ill-serving Ohr’s ruling is, ask yourself some simple questions. If Kain Colter is an exploited laborer, then is a female tennis player at Stanford an exploited laborer, too? Is a lacrosse player at Virginia an exploited laborer? Is a rower at Harvard?

The NCAA is made up of 15,000 institutions and 20-odd sports. What’s the bargaining unit? Is it just football and basketball players who can unionize? Or all scholarship athletes? Can a freshman demand as much pay as a senior? Is there seniority? Can women demand equal pay — and if not, why not?

That's Sally Jenkins in the Washington Post, and those questions go on for another five paragraphs, all of them seemingly asked by a person who has been hiding in an East German bunker since 1989. Attn Ms. Jenkins: the green stuff can be exchanged for goods and services, and is acquired by participating in the economy.

It is yet another level of hilarity when the people directly involved with the enterprise throw up their hands when it is suggested that any other system is even possible. When Mark Emmert is proposing a Supposedly Unanswerable Question…

"If I can hire someone to play football for me why would I hire an 18 year old? Why not someone who plays in the CFL?" Emmert on unions

…you don't just ruthlessly fisk someone who has a job at a newspaper for no discernible reason. You get to scream "THIS IS YOUR JOB." It is Mark Emmert's job to figure out how the NCAA is run, or at least to organize the fractious community under him that does so. He more than anyone else is in a position to say, "you know, certain aspects of the college sports experience are required to maintain its popularity and certain other aspects are not." Instead he sits and… well, "plays" dumb is the idiom that usually goes here. Recent statements suggest it is no act. Plays dumber, I guess.

"Are you going to fire student-athletes? Is that really what we want?" Hart said. "I think we want the same things but I'm not sure this is the correct avenue."

Athletes get fired all the time already, but of course you know that, and SMU knows that, and the main thing holding even more athletes back from getting canned is not the existence of a union—one of the problems with unions is that in certain cases it becomes almost impossible to fire anyone—but the fact that anyone other than Alabama that turns their roster over that rampantly is going to be untenably young and get recruited against extensively.

But the answers to these easily answerable questions aren't really the point. The point is the sighted men asking them, pretending to be blind. There is a recent precedent for this.

hashed out faster than you can pass out at a Lars Von Trier movie

All this is reminiscent of when BCS flacks would attempt to grapple with the idea of a playoff. They would posit themselves as orangutans trying to jam a playoff banana into a college football square and grunt/holler about how it was ENTIRELY IMPOSSIBLE. When observers pointed out that literally every other level of college football featured a playoff, the orangutans would grunt/mutter that lower levels of football didn't involve as much effort, then point and exclaim "BUT WHAT ABOUT SCHOOL?!" before dropping a smoke bomb.

When they were still present after the smoke bomb dissipated, it turned out a playoff was something that could be hashed out in 45 minutes at lunch. How many teams? Uh, four. What locations? Uh, rotating bowl sites. Done. Now what? Let's try to make our logo as titillating to 13-year-old boys as possible. Sounds good, everybody, let's all congratulate ourselves with million-dollar bonuses! And bananas, because while we're not literally orangutans, bananas are terrific!

They did this almost the instant their system spat out an LSU-Alabama rematch that the nation rejected in the television rankings. As soon as it became clear that they could make more money, all problems and issues magically evaporated. Expect the same in the weeks following a judge's gavel sometime in the next few years.

Indeed, why not? Why can't a CFL player sign with, say, Iowa? A regular undergrad or grad student can leave school and come back as many times as a school will accept him or her. There are people who go through school-work-school-work cycles for large parts of their lives. Why not a football player?

It's started to bother me during the last couple of MBB offseasons that I love a sport that the participants are generally eager to leave behind as soon as they can. The Mitch McGarys of the world are underpaid and carrying the risk of losing a career as a result of an injury (imagine if Greg Oden had stayed at OSU another year). Michigan is mostly a means to an end to someone like him. The amount of pressure a McGary faces, the amount of money he makes for a school, and his risk make that absurd. Major college football and basketball should be more valuable to the players as ends unto themselves. Otherwise we're stuck with an asymmetric situation loved by fans, coaches, and ADs and fled by players.

"minor league system" for many major programs (except us). The only difference that is that grades are enhanced, not skills by going that route. As long as the CFL player is within a certain age range, there really is no difference.

When I want to watch a pro football game, I watch NFL. I don't watch CFL, never watched USFL, don't care about Arena League.

I watch and support Michigan football (and all other sports) because the players are students at my alma mater. I will not support a minor league team that has some bizzare affiliation with the university. Not sure why the school should even bother with it.

I will watch a bunch of walk-on students play before I watch any hired guns.

Didn't watch the USFL? Too bad. The USFL briefly brought playoff/championship pro football to the area.

The Michigan Panthers had AC and won the first USFL championship in 1983, 37-21 over the Oakland Invaders, 26 yrs after the Lions' last championship, and 13 years since the Lions had last been to the playoffs. Maybe that inspired the Lions, because they made the playoffs in 1983, of course losing in the first round. And they wouldn't be back till 1991, when they finally won a playoff game (which they haven't done since). And now it's over a half-century, and the Lions still haven't been back to a championship game.

Unfortunately, in the Panthers' second and last season, AC broke his arm in game 6, which ended his season. The Panthers lost their first round playoff game to the LA Express in triple OT, 93 minutes, 33 seconds - the longest game. Then the Panthers merged with the Oakland Invaders.

Yup, if I were a college football coach recruiting "employees" I would want a grown man blocking on the offensive line. Heck, I think older, more mature players would probably be better just about everywhere.

Athletes get fired all the time already, but of course you know that, and SMU knows that, and the main thing holding even more athletes back from getting canned is not the existence of a union—one of the problem with unions is that in certain cases it becomes almost impossible to fire anyone—but the fact that anyone other than Alabama that turns their roster over that rampantly is going to be untenably young and get recruited against extensively.

Alabama doing it isn't really the same thing as seeing it happen all the time. Saban is a dick and we acknowledge this - that's not equivalent to a system-wide flaw that people are pretending doesn't exist.

Also, I don't think the questions posed by Sally Jenkins are "unanswerable questions" - they're questions that'll have to be answered by the process as it moves forward, and how those questions get answered will determine the quality of the eventual future. I think we've already established, for example, that the idea that "football players are employees because they work for a profitable business" is bunker than bunk. At least around these parts.

The system wide flaw is the fact that any SA can be removed from scholarships at any time. Just because Saban's the acknowledged dick exploiting it doesn't mean that the rule itself isn't a system wide flaw.

I believe one thing the union originally wanted to do was require 4 year guaranteed scholarships - which many on all sides of the union debate agree are a good idea.

It isn't that "football players are employees because they work for a profitable business." That's never the definition of an employee. GM and Ford line workers didn't stop being employees (and the UAW didn't vanish) when GM and Ford were hemorrhaging money.

A more accurate phrase is that "football players are employees because they work in a business whose primary focus is financial, not educational"

There's a line somewhere, and it probably isn't a clean one. It's easy to look at major college football and say "yeah, that's a business." And it's easy to watch DIII softball and say, "yeah, that's not a business."

Though DIII is different, because the athletes aren't compensated, so they aren't employees.

It's a good question because where is the line drawn? Your student managers and student athletic trainers play a role in helping the team perform at its highest level and produce income for the school. Do they receive some form of monetary compensation too?

It isn't that "football players are employees because they work for a profitable business."

I include this mainly because that's basically what Brian has argued in the past, and because the vibe I got from his sarcasm was that his answer to the question "is a rower at Harvard an exploited laborer?" is "no, because they don't bring in revenue or profit."

Here's my totally unanswerable rhetorical question to that: Above it was established that there's probably a line somewhere, and that D-III softball is clearly on one side of it but FBS football is clearly on the other. Different sets of rules.

What about semi-revenue sports like baseball? It's really big business at a place like Ole Miss or LSU. It's a main driver at a place like Cal State Fullerton, where it probably supports a sport or two. It's nothing at all to an Eastern Michigan, which plays it, but very badly. (Or if you prefer, Purdue, which is a big-business school but plays baseball even worse.) Or, what about a place like Hobart or Union, which play big-boy lacrosse or hockey but their football teams (if they exist - I have no idea) are nonscholarship?

Short version: at some places, the dolla dolla bills are flying and at some places they're not - but in real life, the value of, say, an electrician is not appreciably different whether they work for GE or Joe's Local Electric Fix-It - especially if both belong to a union.

Herein lies the problem, and why I ultimately believe that college athletes should NOT be paid by their universities: Most schools--even in the FBS--are not actually making a profit directly from their football program. Revenue and profit are very different things, and, while every FBS school is brining in millions of dollars of football revenue, these programs are also extremely expensive to run.

Letting kids get paid for likeness? I have no problem with that. Let them endorse, market, and start to learn about the business side of sports. That would be an education. Help them learn about money in a more controlled environment than they'll have once they are in the NFL.

The problem with distinguishing between "revenue" and "profit" in this way is that athletic departments are able to massage the accounting so that they aren't profitable no matter how much revenue they're bringing in. All they have to do is add new varsity sports, or pay for more expensive equipment, or take the basketball team to Europe, or increase the offensive coordinator's salary, or...

If athletic departments wanted to be profitable, many of the biggest ones could be. Because they explicitly don't want to be profitable, many fewer are than would be if they were run like businesses with shareholders. Athletic departments are expensive to run in part because they want to be expensive to run, so that the firehose of money has somewhere to go.

That said, I'm with you on the solution. The Universities probably can't figure out a reasonable way to pay the players, but they also don't really need to. Have the school pay the scholarship and let the perks come from outside (likeness, etc).

Football allows the intellectual part of my brain to evolve, but it allows the emotional part to remain unchanged. And this is all I want from everything, all the time, always. --Chuck Klosterman

The primary focos of the business is not relevant. If it was, then non-profits wouldn't have employees. I think the more accurate quote is "football players are employees because the work they perform is unrelated to their educational pursuits." That is the rational the regional director (Ohr) used to get around NLRB precedent in the Brown University case for graduate students. I also believe that the full Board will use the Northwestern case to overturn the Brown Univeristy decision on graduate students as that is what the NLRB is prone to do as they go from Reagan/Bush Boards to Clinton Boards to Bush Boards to Obama Boards and so on.

While I think your logic is sound, I have a different opinion. I do believe that college football is primarily an educational activity. And I believe every coach in the country would agree with that. I do not think the amount of money generated changes the primary focus of the activity.

I understand and appreciate your point of view, and Brian's, I just disagree. I believe college football is educational, and that it is not employment.

That said, I don't think players should be restricted from selling their likeness or using their notoriety to be compensated while they are in school. That part is bogus.

There are lots of problems that require fixing, and CAPA actually did a good job bringing some to the forefront:

Players should be guaranteed five-year scholarships

Players should be allowed to transfer if their coach leaves (and not sit out)

Players should receive the cost of attendace

Player safety should be more highly valued and medical costs covered even if the player can no longer play (for football-related injuries)

Improving graduation rates by allowing former players to finish their degree

Actually educating the players while they're in college

It's a bad system that needs fixing, but I think having universities pay players is a bad idea.

Jenkins' questions are clearly not unanswerable, which is Brian's point - Jenkins is using the "unanswerable question" rhetorical device to act as if the changes would open a Pandora's Box of destructive chaos. She seems to suppose that merely posing a potential difficulty resulting from the change ought to be sufficient to stifle any further discussion on the issue. Which is indeed basically the strategy used by the BCS guys.

I think the point Brian was making about Sally Jenkins that all of the claimed "unknown questions" were really quite answerable, but you needed to actually get to them and put real costs and benefits to them, not keep them in the hypothetical world that most of these complaints come from. Give them meaning and parties with agency, and they'll be hashed out pretty quickly.

And while Alabama is perhaps the most flagarant, this hiring/firing of athletes happens in lots of places, and in many sports people like us don't even notice. I knew a couple of people at UM who were on the various Track/XC teams whose partial scholarships were effectively taken away ("redistributed" I believe was the word used) when their performance faltered.

I think you are way too quick to dismiss Emmert's point about who can be "hired" to play football (and the companion question about maximum length of eligibility). I'm not trying to defend everything Emmert or the NCAA are arguing, but simply these two points.

If players are considered employees (note: this is irrespective of the choice to unionize) and the NCAA continues to attempt to enforce limitations on who and which individuals can be hired, I doubt those limitations would survive an anti-trust action unless (1) all football athletes unionized and (2) the limitations were collectively bargained. I mentioned this in a post buried in another thread, but any restrictions on employment--including requiring employee-athletes to be students, limiting employee-athletes to four years of eligibility, and barring employee-athletes who have had a professional or semi-professional career--would likely be overturned by a court.

If you don't care about those aspects of college sports, that's fine. I like pro sports, and most pro athletes have no real connection to the city they play in. But dismissing the argument that these aspects of college sports will change is denying the reality of those changes. Unless my understanding of labor law and antitrust law is waaaaay off, I don't see how you can transform student athletes to employees and not lose those aspects of college sports.

I was an employee of the school when I was an undergraduate (I had a work-study job every semester) and I had to attend classes. Similar issues are in play for graduate students on research or teaching assistantships.

I'm not sure this has happened anywhere else--this was the only case I turned up with a google search.

The end result, apparently, were wage and rights concessions by the college, but no union. I haven't found any articles shedding any light on those negotiations, but in the articles I've found on line, some pro-union and some anti-union, I haven't found any indication that the school ever claimed their work-study students weren't employees or that the primary purpose of a cafeteria job was educational. (Curiously, in that context, when Oberlin was founded students were required to work on the campus agricultural lands and the school did explicitly and probably accurately--none of these legal issues were in play back then--claim that such labor was an important part of the educational experience.)

A school's internal hiring decisions for work-study students are very different than what they would be for employee-athletes that compete against other employee athletes under common guidelines developed and enforced by the NCAA.

Think of it another way: say an NFL team decided to only hire players who played for a college in the team's state. It is not inconceivable that a team could generally operate that way with free agents and draftees (setting aside whether it would help a team win). Now suppose the NFL tried to institute the same rule league-wide (assigning schools in a state without an NFL team to other states, etc). It is HIGHLY unlikely that such an approach would be legal. The NCAA has even less protection than the NFL, because in the NFL there is currently collective bargaining on behalf of all players and it is unlikely that all NCAA football players will be able to collectively unionize for political reasons.

I'm not arguing that the situations are the same, I'm just pointing out that the fact that a person is required to attend classes does not, in itself, mean that same person can't be an employee of the school.

People claiming athletes aren't employees need to look elsewhere for a reason.

But I think the more important question is whether if college athletes are deemed to be employees, whether then colleges or the NCAA can force the employee-athletes to also be students, have only 4 years of eligibility, and not have pro experience first. I'm sure that the NCAA could permit college athletes to be students, but can they restrict the employee athletes to current students and can they restrict their eligibility? One might reasonably argue that those aspects of college sport are not important. That's fine--just don't argue that if athletes are deemed to be employees that they will be able to be required to be students and (generally) only come in at 18 with no pro experience.

The NCAA could spin that the eligibility requirements are a bona fide necessity, since "college age players who are students in college" is an important part of the product's appeal. I'm sure they could find a sympathetic jusge willing to buy this logic, and most players probably wouldn't object. I still think we're a long way from the place where a CFL guy would sue over his right to be "employed" by a college football team as a player.

That is a pretty strained argument, especially given the popularity of pro football. Besides, that argument boils down to essentially "let us act in a way otherwise barred by antitrust law because it will make our product more desirable." A judge will see right through that argument, and if not an appellate panel will. If college athletes are employees, there is no job-related necessity (meaning a reason related to the worker's ability to perform his or her job) that I can think of for restricting to college students with remaining "eligibility" as currently defined.

The NFL is at a completely different skill level. Other football leagues at a level more comparable to FBS, like the USFL or the Europe League, have been financial disasters. I don't think it's a stretch to suggest that college football succeeds where all other minor leagues have miserably failed is that they've found a way to monetize fans' allegiances to their schools, or that detaching players from the student body would threaten that allegiance.

We're already perilously close to crossing that line in college basketball, for me. I know there are people that will cheer for anyone wearing the right uniform; I'm not one of them.

To be clear, I was just explaining how a judge might view that argument, not my personal hopes for what the college system turns into or whether it would be viable. My guess is that college football would lose some popularity but it wouldn't crater, and a similar number of ADs will continue to make money as others suffer. As for what I want to see, that's a completely different story...

Salary caps, among other things, would probably violate antitrust law, except that the leagues have successfully argued that level competition enhances their product and is thus essential. Why is "student employees are key to our business model" any more strained?

Salary caps are agreed to pursuant to collective bargaining, which makes many actions that would otherwise violate antitrust law legal. For instance, MLB owners could not unilaterally impose a hard (NFL-style) salary cap. If they tried, they would be subject to legal action; if all of the owners just decided amongst themselves to stay under (for instance) $90 million, even in the absence of a league mandate the owners would open themselves up to a collusion suit.

And you are correct that we are a long way away from a CFL player suing to become an employee-athlete at a college, but (if the employee-athlete model is ultimately upheld) a number of these changes are highly likely over time, even if it does not all come at once. Just because risks are delayed or not temporally imminent does not mean they are not real. I think the bigger debate is whether they are tolerable, ie if we decide we don't care about the college kid/no pros/4 year eligibility model.

I was a Grad Student Research Assistant at UofM. I don't see why the NCAA couldn't use that model. You need to be a student to get that job (by definition) but you are treated like an employee of the university (you get paid.) You are not transforming the student athletes to employees, you are transforming them to student athlete employees. The only novel part is the "athlete."

Sing to the colors that float in the light; Hurrah for the PMS7406 and Blue!

Antitrust law and the like are concerns, but again, why not actually attempt to institute some of these measures and see how the courts respond. At this point, the only adjudication is happening on blogs and the court of public opinion (pun intended), and neither carries any real weight or meaningfulness becuase the affected parties are not being actively enaged.

I am not defending the NCAA argument (to the extent they are making it) that a student cannot also be an employee. What I am saying is that if all student athletes (or at least those in revenue sports at D-1 schools) are employees, then NCAA restrictions on eligibility (4 years, no pro experience, must at least nominally attend school) are highly unlikely to stand over time. A school will undoubtedly be able to hire its students, but there will be no guarantee that other schools will have to (or be able to formally agree to) require all athletes to be students with 4 years of eligibility and no history as a pro. You may believe that those aspects of college sports aren't important, and that is perfectly fine, but they are unlikely to survive if athletes are ruled to be employees.